Friday, February 20, 2015

Primary prevention of
sexual abuse involves targeting root problems to prevent the abuse from
occurring in the first place. This article will summarize why I believe it is
important to discuss the popular but imprecise belief that someone who holds a
sexual interest in children is eventually going to commit a sexual offence
against a child.

Virtuous Pedophiles is an organization with the
goal to reduce the stigma most pedophiles experience by popularizing one fact
that most of the public does not know (or at least acknowledge): that a number
of pedophiles do not commit a sexual offence. As I discussed in my Nextgenforensic
article, most of us overlook the key distinction between the term ‘pedophile’ and ‘sex offender against children’. That is, pedophiles are those who
hold a sexual interest in children whereas sex offenders against children are
those who have committed a sexual offence against a child (see here
for more information on pedophilia). Not
all pedophiles are sex offenders and not all sex offenders against children are
pedophiles (for an interesting review, see Seto, 2008).

I recently had the
opportunity to speak to the co-founders of Virtuous Pedophiles, Nick Devin and
Ethan Edwards (pseudonyms). The Virtuous Pedophiles online forum currently has
over 600 members and, as noted in their website their “…highest priority is to help pedophiles never abuse children.” Nick
and Ethan were kind enough to answer a few questions on the impact of imprecise
language and future directions for clinicians, researchers, and policy makers
in this field.

ON
THE IMPORTANCE OF LANGUAGE

Labels influence
peoples’ views and perceptions (for review, see Harris & Socia, 2014
and Janke
et al., 2015). Both Nick and Ethan highlighted several reasons for why it
continues to be important to be explicit in distinguishing between pedophiles
and sex offenders. For example, Nick pointed out the negative impact of the
public’s habit of equating pedophiles to sex offenders: “[m]any pedophiles believe themselves to be evil as a result of
attractions that they did not choose, even if they don't act on those
attractions. Many are depressed as a result; some are even suicidal”.

Negative public views
not only means pedophiles are stigmatized, but also that some pedophiles do not
seek help from professionals because of their fear of being discovered. As Nick
pointed out, more precise language can change public perceptions and even laws.
“I think the source of the hatred is the
failure to distinguish between pedophilia and sex offending. People just
are not aware that a great many pedophiles successfully resist their sexual
attractions. If enough people became aware, I think
the hatred would be reduced. Pedophiles would be more
willing to get the help they need, and fewer children would be sexually abused.”

IMPLICATIONS
FOR KEY STAKEHOLDERS

1)
Clinicians and Policy Makers

There are a lot of
improvements needed to expand services to pedophiles and, ultimately, to aid in
the primary prevention of child sexual abuse. I asked both Nick and Ethan what
clinicians and policy makers in the field can do to help pedophiles lead more
productive lives without offences. Both had important points, which I provide
below.

Ethan: “Clinicians can do several things. One is to
learn the true mandated reporting requirements in your jurisdiction... Treat
pedophiles as people with a difficult life problem, not just as potential
molesters. You have been trained for empathy and respect for your clients, and
extend that to pedophiles -- especially those who have done nothing wrong. Do
not abruptly terminate therapy without providing a referral. Accept that
pedophilia is a sexual attraction that was not chosen. Do not try to eliminate
the attraction, but help clients work around it and feel OK about themselves as
long as they do not harm others. Often pedophiles have no trouble controlling
their behavior, but want help with leading a worthwhile life. Knowing that you
will never know sex or love, and knowing that everyone would hate you if you
told them who you truly are -- these alone are understandable causes of
distress.”

Nick: “With respect to policy makers, they need
to look at the mandatory reporting rules. These rules require therapists
to report a patient if they think the patient is a danger is to a child.
The rules are well intentioned. Of course we want to protect children
from abuse. The problem from the pedophile's perspective is that the
rules are vague. No one knows what a particular therapist will
consider dangerous, and the consequences of being reported are so severe (e.g.,
social ostracism) that many people who need help don't go to therapists due to
fear of being reported. Dr. Fred Berlin of JohnsHopkinsUniversity use to see a
large number of non-offending pedophiles as part of his practice. He
reports that pedophiles stopped coming in for treatment when Maryland
adopted mandatory reporting rules. Dr. Hans Beier runs a program
called Prevention Project Dunkelfeld in Germany, which encourages pedophiles to
come forward for treatment. He has said that the program would not be
viable in the United States
due to mandatory reporting rules.”

As policy makers, it
is important to acknowledge the deleterious effects of mandatory reporting law.
Overly restrictive laws results in pedophiles not getting the help that may
have preventing them from abusing a child. It is true that as clinicians, we
are limited by the mandatory reporting laws in our jurisdictions. If you live
in a restrictive jurisdiction, which requires you to refer someone who reports
a sexual interest in children, it is important to note that there are an
increasing number of anonymous online resources available to your client (which
I summarize here).
Unfortunately, not all clinicians currently do this, as Ethan pointed out:

“…some
researchers have said that most sex offenders commit their first offense when
they are desperate and feel they have nothing to lose. Yet when some explicitly
seek help, they are told that no resources are available to them unless they
have committed an offense.”

2)
Researchers

As a researcher, I
was particularly interested in what researchers in the field can do to help
primary prevention efforts. Here is a summary of interesting projects that hold
important implications, as suggested by Nick and Ethan.

Develop a best practices
treatment module and disseminate that information to therapists who
see pedophiles.

Nick summarized
the state of affairs, which highlighted the current uncertainty in our field. Specifically,
some researchers/clinicians believe pedophilia can be changed whereas others
believe that, like other sexual orientation, pedophilia cannot be changed and,
instead, must be managed.

“We hear from a lot of pedophiles who see
therapists and they report different approaches. Some therapists say
you should try very hard not to fantasize about children. Others say not
to worry about that and focus on strengthening strategies to prevent
abuse. Some try to change a pedophile’s sexual interests to make them
attracted to adults. Others say this isn't possible. Some
therapists are right on this and others are wrong. Who is right?
What is the best way for the therapist to proceed?”

A recent
article by Müller
and colleagues on the subject elicited a number of Letters to the Editor,
which highlights the controversial nature of this debate (for those wanting a
snapshot of the debate, there is a radio broadcast on
the subject). More primary studies
are required, and a review article would be useful in providing direction to
clinicians.

More research on non-offending
pedophiles.

Ethan
noted “it would be great if there was
research on non-offending pedophiles. It is very difficult to study us because
we have such a strong motivation to stay hidden. Perhaps anonymous surveys
could be formulated with enough protections to convince celibate pedophiles
that they really are safe in responding. Representative-sample community
surveys could include questions about attraction to children -- why don't
they?”

Such
studies are certainly doable. Online surveys now allow for anonymous
participation. That is, surveys can be created to ensure that no identifying
information is collected, such as IP addresses. In addition, b4uact
provides help to researchers hoping to recruit self-identified pedophiles.
Increasing research on non-offending pedophiles (e.g., the Dunkelfeld group) can improve our understanding
of this group of individuals. Census data certainly would be the gold standard,
but at least in Canada,
we are reducing the scope of census questions (though there is an active debate
as to why we should not). Countries with more flexibility in their census
survey could provide worthwhile contributions to this field with the simple
addition of two questions: (1) Have you
ever felt sexually attracted to a child under the age of 12? (2) Have you ever had sexual contact with a
child under 12 when you were over the age of 16? The answers to these two
questions would provide a robust estimate on how many people with a sexual
interest in children actually offend.

Summary of mandatory reporting
laws.

As Ethan
pointed out “Pedophiles assume the worst
about mandated reporter laws, wondering if just admitting an attraction to
children will get them reported”.

A summary
of mandatory laws for Canada
and states in the USA
(as well as other countries) would be a useful tool for any pedophile seeking help,
as well as clinicians wondering about the scope of mandatory reporting laws.
Access to these summaries may mean that more pedophiles would seek help and, as
such, would be a worthwhile project.

CONCLUSIONEthan
offered a simple way forward: “One simple
starting point is for every person who hears "pedophile" to ask:
Is this a celibate pedophile or an offending pedophile? And if the allegation
is towards a pedophile, treat it with the same skepticism you would if the same
allegation is made against a non-pedophile.” As university professors, we
can teach this to our undergraduates. As researchers, we can make sure to be
explicit in our publications. As clinicians, we need to be aware of the distinctions
between those living with pedophilia and sex offenders, as well as provide help
to the best of our ability given our respective mandatory reporting laws. As
policy makers, we can teach this distinction to politicians, as well as highlight
the harmful effects of mandatory reporting laws and other policies on
prevention efforts.

One final thought: we
can better prevent sexual abuse if we provide pedophilic individuals with the necessary
support and resources. However, it seems that common stumbling blocks (e.g.,
mandatory reporting law, fear of self-identifying as a pedophile) are due to the
popular but imprecise belief that someone who holds a sexual interest in
children is eventually going to commit a sex offence against a child. As
highlighted by surveys and research studies now
available, being a pedophile does not mean you are bound to commit a sexual
offence. Indeed, whereas pedophilia likely is not a choice (e.g., studies here and here),
committing a sexual offence is a choice, and one that a number of pedophiles do
not make. Of course, we can do much more to prevent child sexual abuse, as
highlighted by my conversation with the cofounders of Virtuous Pedophiles. One
seemingly simple step has to due with being more precise in our use of language.

Kelly
Babchishin, Ph.D. is a Banting postdoctoral fellow
(CIHR) at the University of Ottawa’s Institute of Mental Health
Research and the Karolinska Instutet in Stockholm, Sweden.
Kelly’s doctoral dissertation examined change in acute risk factors of sex
offenders; her current research involves identifying causal candidates for the
onset of sexual offending. Her other research interests include online sexual
offending, pedophilia, and risk assessment.

Saturday, February 14, 2015

The above is the partial sign off
of the now infamous Anonymous 'hacktivists'. In their early days the group
pursued online attacks as a form of non-violent protest, essentially striking
back at anyone they perceived to be an enemy of freedom (Poulsen, 2011). These
strike backs were usually in the form of distributed denial of service attacks
(DDoS) that were designed to disrupt the communications of targeted websites.
Whilst the group have been portrayed as an open source brand of radical protesters,
their name in recent years has been used in other related ‘causes’, most
recently for snuffing out paedophile rings.

The Telegraph, in January 2015
published the headline: "Anonymous hackers turn fire on global paedophile
menace" (Telegraph, 2015). However, this is not the first time that this
vigilante brand of online activism has turned its attention to indecent images
of children. Operation DarkNet was the group’s first campaign against online
paedophilia in October 2011. The group
recognised that child sex offenders (CSA) were becoming increasingly Internet
savvy and had begun to mask their online identity through ToR. Anonymous used
the same technology to shut them down. Additionally, they targeted the web host
‘Freedom Hosting’ accusing it of knowingly hosting indecent images of
children.

In 2011 a discussion ensued as to
whether Anonymous were now a force for good, a champion to sanitise our online
space. In fact, a poll commissioned by naked security revealed that just over
81% of voters believed Anonymous did the right thing by shutting down websites
that hosted indecent images of children (nakedsecurity, 2011). However, the
implications of such unsolicited action did not receive support from law
enforcement and child protection experts who criticised them for compromising
existing investigations by preventing police from gathering the necessary
evidence for successful prosecutions and by inadvertently putting more children
at risk.

The new mission of 2015, named
“Operation DeathEaters” is designed to expose international paedophile networks
in the wake of the Westminster child abuse scandal and allegations of institutional
cover-ups. Anonymous states the objective of Op
DeathEaters is to achieve an independent, internationally linked, victim-led
tribunal or inquiry into the trafficking and “paedosadism industry” (Telegraph,
2015). This could
in fact garner greater public support than its predecessor because evidence
reveals that when Anonymous activists expose the shadowy workings of the state
they tend to make the most impact on wider society (Coleman, 2012).

There is no doubt that sexual
offending is a devastating crime and one that is currently capturing worldwide
media attention, with an almost daily digest of tales of historical child abuse
involving celebrities, or institutional abuse that has taken place in a range
of settings. Sexual offending behaviour results in a magnitude of complex
issues not only for the victim and the offender, but also for wider society as
a whole. What media reports like that in the Telegraph don't tell the public is
that there is no 'usual' or standard pathway whereby someone will 'become' a
sexual offender. We have no idea how many people access child abuse images, but
what evidence from convicted offenders does reveal is that they are
heterogeneous group (Quayle, 2004).

Child abuse images online and
also chat groups/forums may have removed some of the barriers that previously
discouraged some people from pursuing their sexual interest in children.
However, the function of abuse images and their relationship to contact
offending remains unclear. Therefore, we
need to question whether crusades like the one instigated by Anonymous actually
do anything to prevent child sexual abuse from occurring in the first place. In
debating this issue what we need to be careful of is not to lose sight of the
victim in the imagery - the child who has been abused. Essentially, what must
be remembered is that the computer is the tool. Sexual offending against
children predates the evolution of Internet technology. What we must address is
the behaviour, it is by addressing
offending behaviour in an evidence based way that children will be protected.

For the general public, child sex
abuse is a highly emotive topic with 'knowledge' and misinformation usually
emanating from the media. The simplistic undifferentiated approach to sexual
offending that is presented is a risky strategy and could in fact dissuade
those who want to seek help for their behaviour coming forward to support
organisations. Undoubtedly though sexual offending is an issue that the media
will continue to pay attention to and, one that society expects will be dealt
with. The impact and repercussions of "OpDeathEaters" remains to be
seen. What we can be certain of at this stage is that these net vigilantes will
not prevent child sex abuse, they will not protect children, nor will this
vendetta address offending behaviour. If the ultimate goal is to make society
safer and to protect children then it is evidence based practice that must be
adopted, rather than vigilantes developing their own crusades which will
ultimately be detrimental for the whole community.

Particularly over the past two
decades, the terms sex offender and juvenile sex offender (JSO) have attained
increasingly common usage in media and public policy discourse. Although often
applied as factual descriptors, the labels may evoke strong subconscious
associations with a population commonly presumed to be compulsive, at high risk
of re-offense, and resistant to rehabilitation. Such associations, in turn, may
exert considerable impact on expressions of support for certain policies as
well as public beliefs and opinions about adults and youth who have perpetrated
sexual offenses. The current study systematically evaluated the impact of the
“sex offender” and “JSO” labels through series of items administered to a
nationally stratified and matched sample from across the United States. The
study employed an experimental design, in which one group of participants (n =
498) ranked their levels of agreement with a series of statements utilizing
these labels, and a control group (n = 502) responded to a matched set of
statements substituting the labels with more neutral descriptive language.
Findings support the hypothesis that use of the “sex offender” label
strengthens public support for policies directed at those who have perpetrated
sexual crimes, including public Internet disclosure, residency restrictions,
and social networking bans. The “JSO” label is demonstrated to produce
particularly robust effects, enhancing support for policies that subject youth
to public Internet notification and affecting beliefs about youths’ propensity
to re-offend as adults. Implications for public policy, media communication,
and research are explored and discussed.

Could you talk us through where the idea for the research came from?

It was a product of a fortuitous opportunity, some general
concepts we had kicking around, and a few magical pints of Guinness.

The opportunity came from the UMass Lowell Center for Public
Opinion, which fields an annual internet panel survey of U.S. adults and
solicits faculty proposals for submit question batteries to be included in the
survey. When the 2014 RFP came out, Kelly Socia and I started brainstorming
survey ideas related to sex offender management policy. We met up one
evening at the Old Court, an Irish bar in downtown Lowell, with our
colleague Josh Dyck, a political scientist who co-directs the Center.
At some point, the conversation shifted to the use of survey experiments
in public opinion research - we began thinking that some sort of
experimental manipulation might contribute to the literature on public
perceptions toward those who have committed sex offenses. I’m not
completely certain, but I think the idea of focusing the experiment
specifically on the effects of the “sex offender” label ultimately came to
me the next morning in the shower.

The survey has produced some great data — beyond the items we
developed for the experiment, we have collected survey data related to citizen
perceptions of sex crimes, registry usage, beliefs about policy, and trust of
research evidence. We hope to have analyses from some of those results
published over the next year.

What kinds of challenges did you face throughout the process?

Methodologically, this project was fairly straightforward - we were very
fortunate to have a turn-key method of data collection and a reasonably clean
and manageable dataset that required minimal recoding. We were also
able to meet our analytic goals without employing terribly complex methods.
Our biggest challenge, I think, related to developing
a cohesive explanatory framework to ground the study. Our hypotheses
concerning the possible effects of the “sex offender” label were mostly driven
by gut intuition — our challenge was to identify the relevant strands of
research and theory to support these hypotheses and to ultimately
frame our results in the context of the broader literature. We ended
up drawing on insights from psychology and behavioral economics related to
heuristic processing, and from political science and public opinion
research focused on framing effects. Our reviewers and our action editor
Michael Seto offered some very helpful feedback that was instrumental in
refining our thinking related to our theoretical assumptions and our
explanations of our results.

What kinds of things did you learn about co-authorship as a result of
producing this article?

Although Kelly and I have done some work together and exchanged ideas
over the past couple of years, this was our first significant
collaborative effort. As I mentioned, this study is just one part of a
larger undertaking, and we have adopted a kind of “divide and conquer”
approach. I think we each bring something unique to a project such
as this. I’ve been analyzing and thinking about public policy
issues for a long time, and am pretty comfortable with mixed methods
research - sort of in a “jack of all trades, master of none” kind of way.
Kelly is light years ahead of me in terms of methodological sophistication -
there is stuff that we are working on that there is no way I conceivably do
only own. We also have been working with Josh Dyck on some of the
follow-up research, and it’s been particularly exciting to be able
to draw upon his expertise and alternative theoretical perspectives he
brings as a political scientist as a scholar of public opinion.

What do you believe to be the main things that you have learnt about the
labeling of sex offenders, and what are some implications for practitioners?

It’s no great revelation that labels carry significant weight in how we
think about certain groups - and there’s been some really interesting work done
related to the language and narratives of sex offender legislation. Some
commonly employed terms, such as “sexual predator,” carry strong metaphorical
overtones - their use in political and media discourse is designed to
evoke fear and dread, and their overuse can produce some less-than-optimal
policies. Most of us in the research and practice communities
implicitly recognize the power of such labels, and we bristle when we hear
them broadly applied to the universe of people who have committed sexual
offenses.

The term “sex offender” is different -- we have come to treat it as a
value-neutral descriptive term for a person who has committed a sexual
offense. We use it all the time in the context of research and practice,
often without giving it second thought. Yet our study suggests that
the effects of this label are not benign — evoking the term “sex
offender” seems directly associated with levels of support for more restrictive
and punitive policies, and the term “juvenile sex offender” seems to
have particularly pronounced effects on how citizens view youth who
have sexually offended. For practitioners, researchers, and anyone
engaged in policy work, we need to recognize that these terms are far from
neutral in their effects.

Saturday, February 7, 2015

This opinion piece is the
second of a three-part series on the Minnesota Sex Offender Program
(MSOP). On February 9, 2015, at the US
District Courthouse in St. Paul, a federal trial is scheduled to determine the
constitutionality of MSOP. Part 1 discussed some of the issues and concerns that led to the federal
trial. Part 2 reviews the 2014 report from a team of experts appointed by the Federal Court to examine the
program. After the conclusion of the
trial, and the court has issued its ruling, Part 3 will review the decision and
discuss implications.

To understand
why not a single individual, out of more than 700 clients at MSOP, has been
able to gain full release from sexual offender civil commitment (SOCC) in
Minnesota over the last 20 years, it is important to understand that MSOP is
the program component of a larger system.
To help understand the problems at MSOP and distinguish them from the
systemic problems, and to provide professional expertise on therapeutic aspects
of this federal lawsuit,
US District Judge Donovan Frank appointed four sex offender treatment experts,
under Rule 706 of the Federal
Rules of Evidence, to help guide the Court.

At a Federal Court
hearing on 12/18/2013,
Judge Frank announced the appointment of the 706 Panel: Naomi Freeman works for Forensic Services at the New York State
Department of Mental Health and leads the SIST Unit, which manages non-secure
civilly committed individuals. Mike Miner is a Professor and Research
Director of the Program in Human Sexuality at the University of Minnesota
Medical School. Deborah McCulloch is the Director of Wisconsin’s SOCC program. Robin
Wilson was the Clinical Director at Florida’s SOCC program from 2006 to
2011, during which time there was a class action lawsuit and settlement. All four experts are members of ATSA.

Judge Frank commissioned
the 706 Panel to complete a review of MSOP, and ordered the State to provide the
Panel members with unfettered access to MSOP clients, staff, and records. The 706 Panel was not tasked with completing a
“peer review,” per se, but more accurately to examine
the program, interview clients and staff, probe systemic influences, and
essentially try to determine why clients were not getting out of MSOP. The 2014 examination of MSOP by the 706 Panel
is perhaps the most thorough independent review of MSOP ever commissioned. The findings in the Panel’s 108 page Report
(11/17/2014), are largely consistent with previous reviews. Problems with MSOP and the overarching system
were the subject of a 2011 Report
from the Minnesota Office of the Legislative Auditor, a 2012
review of MSOP by a Program Evaluation Team, and a 2013
Report by the Minnesota SOCC Task Force.

To be sure,
there are systemic problems with SOCC, but the 706 Panel also found significant
problems with MSOP, as a program. While
the Panel Report gives credit to many areas of strength at MSOP, numerous findings
of the 706 Panel are of concern. The
Panel Report explains how more than 700 clients have gotten mired in treatment
at MSOP, and offers scores of constructive recommendations. The 706 team brings vast professional
experience and credibility to their review of MSOP and the SOCC system. Their knowledge, insights, and candor makes
the 706
Panel Report highly informative. The
entire report should be considered a “must read” for anyone who works with
SVPs.

The 706 Panel Report: A Critical Review

(Note: bullet points are direct quotes from the Panel Report)

It is important
to acknowledge that a central problem at MSOP has been the difficulty with attracting
sufficient experienced, qualified personnel, especially clinical and
psychiatric staff. At one federal hearing, Dan
Gustafson, lead attorney representing MSOP clients, expressed that the
State was shortsighted in putting MSOP’s main facility at Moose Lake, a rural
part of Minnesota where it is difficult to attract personnel in large numbers. Gustafson quipped that the State could have
bulldozed the Metrodome and put MSOP in downtown Minneapolis but the State
chose, instead, to build a new stadium there. He went on to explain that, if the State is
going to use SOCC, the State has to solve this personnel problem; inadequate staff,
for whatever reasons, has real consequences to MSOP clients.

The 706 Panel raised many concerns about MSOP treatment
and treatment targets:

… the MSOP’s narrow focus of training and attention on treatment for problematic sexual behavior likely contributes to a culture wherein mental health disorders are not appropriately identified or understood by many MSOP staff, including clinical staff. (p.15)

There appeared to be little recognition and understanding of the complexity and heterogeneity of the problems and issues presented by clients committed to the MSOP. (p.17)

… it appears that clients are over-diagnosed, especially given the prevalence of numerous paraphilic diagnoses. (p.58)

Clinical staff and clinical supervisors do not appear to be supported or encouraged to appropriately modify the treatment offered in order to appropriately respond to the individual and complex needs of these clients. (p.45)

Many of those with intellectual disabilities likely did not pose a significant risk to the public at the time of their commitment… they are likely to flourish with appropriate programming in less restrictive residential settings… (p.22)

… it appears that treatment progress is currently impeded by unrealistic expectations for client behavior… the current conflation of privilege and treatment progression exacerbates an already hostile environment… (p.70)

with specific reference to suicidal and parasuicidal behaviors, it was the Panel’s impression… that these potentially serious behaviors are too often minimized by staff as attention-seeking or bad behavior for secondary gain. (p.54)

The Panel was particularly
concerned about MSOP’s inability to
obtain adequate psychiatric services for clients:

Psychiatric care at the MSOP is currently inadequate to meet the needs of its clientele. (p.8, 49)

Some clients were so psychiatrically decompensated and disorganized in thought… that they may never be able to meet the established criteria to progress through the phases of treatment. (p.44)

By providing inadequate psychiatric treatment, many clients are being inappropriately served by MSOP… The Panel was particularly concerned about the use of long periods of isolation in rooms in secluded units, which are used in response to aggressive, threatening or self-harming behavior. (p.55)

… SMI clients are unlikely to benefit from the MSOP as it is currently designed… (p.18)

The Panel opines that the majority of these individuals with juvenile-only offending should not have been civilly committed in the first place and, if they had been appropriately assessed, they would not have met criteria for commitment. (p.14)

Specifically, assessments of MSOP clients with juvenile-only sexual offense histories often included reference to diagnostic and risk assessment tools designed specifically for use in the assessments of adults. (p.41)

As such, it is the opinion of the Panel that the majority of individuals in this subgroup would be eligible for discharge. (p.14)

The Panel Report
offered many observations about clients being
mired in the program.

The 2012 MSOP Evaluation Report (Haaven, McGrath, & Murphy, 2012) notes that the program has experienced difficulty moving clients through the treatment phases… promoted a culture of learned helplessness, in which staff and clients alike have come to believe that phase advancement leading to community discharge is a virtually unattainable goal. These same observations were made by the Panel. (p.35)

… there are many clients not participating in treatment at Moose Lake, including numbers who are reported as technically in treatment through their signature on a consent form, but not… engaged. (p.54)

… it was difficult to discern how long clients had been in the current treatment phase or why some clients were not participating in treatment. (p.53)

According to a 2013 MSOP report,
approximately 100 clients had withdrawn from treatment.

Clients not completing
the program at MSOP is, in part, because the
exits are effectively blocked by legislative, executive, and judicial constraints
on the SOCC system.

Currently the legislative framework appears to make transfer to even CPS almost impossible and appears to effectively prevent provisional or unconditional discharge. (p.77)

The Panel recommends that firm timeframes be established in which the court system… needs to make decisions regarding discharge. Currently, the process can take years to complete – in which time clients may decompensate due to feelings of hopelessness. (p.6)

The 706 Panel
was particularly critical of too few
clients at MSOP being able to get to the exits.

The Panel very strongly recommends that MSOP administration ensures that discharge planning begins on admission. (p.6)

In comparison to most other SOCC programs, in which periodic reviews of civil commitment status are conducted on a periodic basis… it is unusual and of great concern to the Panel that assessments of this sort are only completed at MSOP when a client is actually petitioning for release… (p.33)

It appears that lower risk offenders are being civilly confined within the MSOP at a higher rate than in other states. (p.74)

… there are individuals currently committed who likely do not meet commitment criteria. (p.75)

… there is nothing in current policy or procedural guidelines to prohibit MSOP from proactively filing petitions for CPS, provisional discharge, or unconditional discharge for clients who merit such placements – they just don’t do it. (p.78)

MSOP administration has an ethical obligation to release individuals who no longer meet the criteria for SOCC in order to ensure that client civil liberties are protected… (p.69)

Clients getting stuck in treatment phases is largely
an internal matter, within the control and
discretion of MSOP clinical and administrative staff. In August 2014, Judge
Frank wrote (p.34), “The Court notes its growing concern that MSOP is
perhaps not doing its part to make sure that people are properly placed in
various phases of its program…” The 706
Panel expressed similar observations.

… clients seem to spend an unnecessary length of time in Phase Three prior to progression to CPS [Community Preparation Services] … This delay seems to be a result of a pervasive belief on the part of MSOP administration and staff that it is not their responsibility to proactively petition and rigorously advocate for clients to advance in phases and to CPS. (p.44)

After 20 years,
only about
3-5% of more than 700 MSOP clients are in the final stage of treatment prior to
Conditional Release. If today there were
100 or 200 clients who had completed secure treatment, and MSOP staff were advocating,
however unsuccessfully, for the conditional release of clients to be treated in
the community, it would be clear for all to see that it is simply “politics”
blocking the MSOP exits, and fault for a “clearly broken” system could be
dropped solely on the steps of the State Capitol. But to a great extent, clients at MSOP have lost faith in both the program and the system.

Generally, clients want the court to know that they are desperate and that their only hope is that someone in a position of authority will recognize their collective experience… and do ‘something’ to ‘fix it.’ Many clients have been in treatment for 15 years or longer… Sadly, some elderly clients expressed grave concerns that they would die at MSOP. (p.47)

Since MSOP was
established 20 years ago, approximately 30 clients have died while
confined. Many clients are infirmed; the
oldest current client is 92.

The Panel, however, is also critical of the entire SOCC
system in Minnesota.

…the emotional climate at Moose Lake [MSOP] is replete with negativity, despair, and hopelessness. (p.52) The MSOP climate is characterized by high levels of learned helplessness and hopelessness, both on the part of the clients and the staff. (p.13).

The majority of other SOCC states have successfully released clients to community conditional release programs within reasonable timeframes, with few documented sexual or violent reoffenses. (p.67)

… the Panel believes that the legal representation received by clients is insufficient. (p.78)

Clearly, there are issues to be addressed in making MSOP the best program… [but] the current legislative commitment and release framework would continue to call into question whether the intent is to provide treatment… or the intent is to provide for a lifetime of confinement for certain people who have sexually offended. (p.79)

While some might
think that the authors have “cherry-picked” the Panel Report for disparaging quotes,
the full report, is actually more critical than noted herein. While the Panel Report described many program
attributes at MSOP, the Panel
was commissioned, essentially, to help determine whether the concerns raised in
the petition to the Federal Court had merit.
Program strengths and beneficence, while important, will not offset
unconstitutional conditions of confinement, if such conditions are found. Prior to the 706 report, Judge
Frank wrote, “Time and again, professional assessments have identified
grave deficiencies in the program.” (p.68)
Now, the 706 Panel Report largely echoes the findings of previous reports,
and substantially corroborates complaints brought by MSOP clients, and the concerns
of many stakeholders.

The State
created a complex
SOCC scheme that “captures too many people and keeps too many of them too
long” (SOCC Task Force Final Report, p.1), and a release process that “appears
to effectively prevent provisional or unconditional discharge” (706 Panel
Report, p.77). Judge Frank’s February
2014 order suggests that the Federal Court will simplify criteria for
confinement at MSOP, “Today, the Court finds that it is constitutionally
mandated that only individuals who constitute ‘a real continuing, and serious
danger to society,’ may continue to be civilly committed to MSOP. If the evidence demonstrates that MSOP
systematically continues to confine individuals who are not ‘a real continuing,
and serious danger to society,’ then such confinement will be held
unconstitutional.” (p.66)

In his February
2014 order, Judge Frank also wrote, “If the evidence requires it, the Court
will act… The politicians of this great State must now ask themselves if they
will act to revise a system that is clearly broken, or stand idly by and do nothing,
simply awaiting Court intervention.” (p.68-69)
Unfortunately, but not
surprisingly, all three branches of State government have been unable, or
unwilling, to equitably
manage SOCC. In a 8/11/14
Federal Ruling, Judge Frank wrote, “It is obvious that but for this
litigation [clients] would likely have languished for years in the prison-like
environment of MSOP-Moose Lake, without any realistic hope of gaining [freedom].”
(p.34) And most recently, in a Federal
Ruling on 2/2/2015, Judge Frank wrote, “At a minimum, the evidence has shown
that, to date, the executive and legislative branches in Minnesota have let
politics, rather than the rule of law and the rights of ‘all’ of their citizens
guide their decisions.” (p.42)

It takes great
judicial and political courage for any judge to issue a ruling of
“unconstitutional.” Such rulings are
typically controversial, and often subject to appeal – perhaps all the way to
the US Supreme Court. No one knows that
better than Federal Judge Martha Craig Daughtrey of the US Court of Appeals for
the Sixth District, who wrote an eloquent dissent in the case of DeBoer
v. Snyder – the case that sent same-sex marriage to the US Supreme Court in
2015. Judge Daughtrey expressed dismay
with her fellow judges on the Appeals Court who ruled that same-sex marriage
should best be decided by the populace and their elected representatives. Judge
Daughtrey disagreed, “If we in the judiciary do not have the authority,
indeed the responsibility, to right fundamental wrongs left excused by a
majority of the electorate, our whole intricate constitutional system of checks
and balances, as well as the oaths to which we swore, prove to be nothing but
shams.” (p.64) Perhaps Judge Frank is
cut from the same cloth.

If those with
authority and leadership had recognized the value (and political refuge) of
the many previous investigations into MSOP, and heeded recommendations, the State
might have avoided this
lawsuit. Blame for the sorry state
of SOCC in Minnesota belongs to many. Responsibility for finding and
implementing prudent public policies to effectively degrade sexual violence
belongs to all.

Jon Brandt, MSW, LICSW

David S. Prescott, LICSW

Blog note: This is Part 2 of a three-part series. After the US District Court releases its
ruling, expected in March or April of 2015, Part 3 will review the decision and
discuss implications.

Sunday, February 1, 2015

This opinion piece is the first of a three-part series
on the Minnesota Sex Offender Program (MSOP).
On February 9, 2015, at the US District Courthouse in St. Paul, a federal
trial is scheduled to begin to determine the constitutionality of MSOP. Part 1 discusses some of the issues and
concerns that led to the federal trial.
Part 2 reviews the 2014 report from a team of experts appointed by the federal court to examine the
program. After the conclusion of the
trial, and the court has issued its ruling, Part 3 will review the decision and
discuss implications.

Three
years ago, a group of clients at the Minnesota Sex Offender Program (MSOP)
petitioned the US District Court for Minnesota for relief from conditions of
incarceration that they claimed were unconstitutional. A central concern was that the program had then
been operating for 17 years, had received more than 700 “sexually violent
persons” (SVPs), and not one individual had been able to fully complete the
program. Federal Judge Donovan Frank
believed the
petition had merit, appointed counsel to represent the plaintiffs, added
all MSOP clients as a class, and set into motion a review of both MSOP, as a
program, and sexual offender civil commitment (SOCC) in Minnesota, as a system.

Also
three years ago, this blog called attention to “Doubts
about SVP Programs,” raising questions about the legitimacy of SOCC, as
least as it has been implemented in Minnesota.
In a federal
ruling (2/20/14) Judge Frank wrote that SOCC in Minnesota is “clearly
broken,” and suggested that MSOP might be “one of the most draconian sex
offender programs in existence.” Now,
a year later, on February 9, 2015, at the US District Courthouse in St. Paul, a
federal trial is scheduled to begin to determine whether MSOP and SOCC in
Minnesota is unconstitutional.

The
authors want readers to know that our motivation in writing this blog is to
advocate for the highest standards of practice and policy. We believe
advocating for credible and effective treatment for those who have sexually
offended, and supporting those who have been victims of sexual abuse, is a not
a zero-sum proposition. We further
believe that the issues addressed herein are in the public interest and of
importance to all professionals in our field. Ultimately, a successful recovery for
offenders does not come at the expense of victims – it honors victims. Mandating effective treatment to offenders
and protecting everyone’s rights can help to ensure a beneficial outcome for the
many stakeholders of sexual abuse: offenders, victims, their families, friends,
and society at large. However, to be
credible and constitutional, treatment for offenders must have an end
point. The authors are aware of no bona
fide form of treatment for sexual offending that requires twenty years or more
to complete.

Given
that society considers sexual violations as one of the most despicable crimes
against a person, civil liberties for sexual offenders might be among the most
unpopular civil rights causes of our time – perhaps of all time. Since the US Supreme
Court ruled, just seven years ago, that sexual offending cannot be subject to capital
punishment, the State of Minnesota has effectively accomplished what a vengeful
segment of society has long demanded as an alternative to the death penalty – lock
up sex offenders and throw away the key.

Since
Minnesota reconstituted
SOCC 20 years ago, some 740 individuals have been committed to MSOP
(including approximately 30 who have died during incarceration). Only two clients have achieved and survived a
conditional release, and no one has been fully discharged. Effectively, MSOP has a one-way door.

The
criteria for release from MSOP has essentially been: completion of treatment,
establishment of an aftercare plan, recommendations from MSOP staff and the
Special Review Board (SRB), and final approval by the Supreme Court Appeal
Panel (SCAP). Unless a client is released
by court order, administrative releases can be politically blocked
by the governor.

Most
clients and staff at MSOP understand the intellectual dishonesty of treatment
goals that no one has ever completed.
Clients have the impossible choice of “consenting” to participate in
treatment and having less than a 1% chance of release, or withdrawing from
treatment and having no chance of release.
Staff have the impossible job of trying to maintain client motivation
for unending treatment. To the credit of
many, according to MSOP
reports, more than 80% of clients participate in treatment.

By
all accounts, most clients at MSOP sincerely regret their sexual
transgressions, are willing to diligently work on attainable treatment goals,
and express their desire to be contributing members of society. They also recognize
that, no matter how great their efforts or successful their recovery, they will
never escape the state label of “sexually violent person” (SVP) or “the worst
of the worst.” While it is easy to be
suspicious of statements by sex offenders that they regret their actions, two
studies have found that SOCC treatment clients truly believe that treatment is
important (Levenson, et. al., 2009, 2014). However, as it currently exists, MSOP and SOCC
in Minnesota is not a level playing field for clients who earnestly want to
achieve their release.

In
Judge Frank’s 2/20/14
ruling, he warned that if, “Plaintiffs are able to demonstrate that the
commitment statutes are systematically applied in such a way as to indefinitely
commit individual class members who are no longer dangerous, or that MSOP is
administered as a punitive system despite its statutory treatment purpose,
Plaintiffs will likely prove up their claims.”
(p.20)

The
perilous challenges of “preventive detention,” are well understood by Eric Janus,
President and Dean of William Mitchell College of Law. The promises to balance civil liberties with
public safety, and the use of preventive detention under the guise of treatment
are discussed in Janus’ intelligent, well-researched book, Failure to Protect; American’s Sexual Predator Laws and the Rise of the
Preventive State (Cornell
University Press, 2006). Janus
reveals the often-deceptive appeal of SOCC, explains the complexity (and
failure) of existing public policies to effectively abate sexual offending, and
outlines several measures as prudent alternatives to the problematic and constitutionally
compromised use of preventive detention.

It
is not the case that the State doesn’t know what to do with MSOP; it is a lack
of professional courage and absence of political will. In 2011, the Minnesota Office
of the Legislative Auditor published a detailed review of MSOP and a list
of recommendations. In 2012 the Federal
Court directed a SOCC
Task Force to be convened and make recommendations. The Task Force released their final report
in 2013. In 2014, a panel of sex
offender treatment experts thoroughly reviewed the program and issued
their report in November, 2014.

SOCC
in Minnesota, and 19
other states, are driven by justifiable public outrage over an unacceptable
level of sexual violence in the US. But sexual
predator laws in the US are also rooted in antipathy toward “sex offenders”
and pervasive myths about sexual offending - chief among them: that sexual
offenders are a homogeneous group of people that can be readily identified,
that most sex offenders will reoffend, that treatment doesn’t work, and that experts
can accurately identify which individuals are “highly likely” to reoffend – one
standard which must be met for SOCC (Brandt, Wilson, & Prescott, in press).

In
recent years there is a growing body of literature that creates further doubts
about what it means to be “highly likely” to reoffend. In 2013, Dr. Grant Duwe, Director of Research
for the Minnesota Department of Corrections published
research which concludes that the majority of clients at MSOP are likely to
NOT reoffend, even when actuarial research is extrapolated to “lifetime.” In 2014, Dr. Karl Hanson and colleagues
released their latest
research on one of the most prevalent actuarial tool used for SVP
assessments – the Static 99R. Their
research strongly supports Duwe’s findings - that sexual re-offending, even
among offenders considered at high-risk, has been overstated, and that the correlation
between desistance and time/aging is even stronger than previously
believed. Further, Hanson
and his colleagues found that re-offense rates decreased with time that
offenders lived in the community (as opposed to in institutions). It seems that the same actuarial research
that is used to put many clients under SOCC, now indicates that most MSOP
clients will not reoffend. Whether or
not this new research supports a finding that MSOP is operating in an unconstitutional
manner, it is clear that SOCC as applied in Minnesota is greatly overreaching.

With
no MSOP clients having been released via completion of treatment, many clients
are pinning their hopes on a judicial release.
Indeed those hopes may not be misplaced.
In 2014, there was actually one release from MSOP which got little
attention, because it was out “the back door.”
For one client at MSOP, a powerful
dissenting opinion in the Minnesota Court of Appeals set-up an appeal to
the Minnesota
Supreme Court. As a result, his case
was remanded to district court. After
splitting hairs on the differences between “likely” and “highly likely” to
reoffend, the district court ordered the client released, as not meeting
criteria for commitment.

Judge
Frank wrote in his preliminary
ruling that the court will not allow clients to remain at MSOP if they do
not meet legislative and/or constitutional criteria for confinement. While the trial has not yet begun, there is
much evidence already in record to support the need for a major overhaul at
MSOP. What is soon to be determined is
whether SOCC in Minnesota, as applied, is unconstitutional.

Despite
the Federal Court’s admonishment to state leadership to take
immediate action to correct course, all three branches of Minnesota’s state
government remain
in paralysis. The last two governors
have placed moratoriums on administrative releases from MSOP, and the state
courts have repeatedly ignored opportunities to step-up judicial
oversight. A few courageous lawmakers
have tried to take up the cause, but two legislative sessions have passed
without enacting necessary reforms.

Going
into the third legislative session since the Federal Court put Minnesota on
notice, the Minnesota legislature has capitulated to a faux chicken-egg
dilemma: the federal
court has indicated that the state legislature is the best political body
to enact reforms, but reforming MSOP is too politically explosive for elected
lawmakers, who would prefer to take political refuge in explicit directives
from the federal court. Metaphorically,
Minnesota seems to have approached SOCC with the same lack of foresight of
grabbing a wolf by the ears – don’t want to hold on, too scared to let go.

In a
8/11/14
Federal Ruling, when Judge Frank could have acted but demonstrated extraordinary
judicial restraint, he wrote that, “It is obvious that but for this litigation
[clients] would likely have languished for years in the prison-like environment
of MSOP-Moose Lake, without any realistic hope of gaining [release].” (p.34) Several other states with SOCC have a simple
criteria for release, consistent with numerous court rulings – clients who no
longer meet criteria for commitment must be released. It appears there may be hundreds of clients at
MSOP whose confinements are not supported by squishy criteria for commitment or
virtually unattainable standards for release.
By growing indications, it appears that many clients at MSOP could be
safely and unconditionally released, and many more clients could be treated
successfully in the community.

Judge
Frank wrote in his February
2014 ruling, “To be clear, should plaintiff’s prove up their claims, the
statutes as applied and implemented are not likely to survive constitutional
scrutiny.” (p.21) After 20 years of
failed attempts at reforms by the State, putting MSOP under the supervision of
the Federal Courts is only controversial to those who accept status quo, or believe
that “lock them up and throw away the key,” is acceptable public policy. There is precedence for the
Federal Courts to assume control of SVP programs that have run afoul of the US
Constitution. In 1994, the Federal
Courts put Washington’s State
SOCC program under federal supervision for
13 years. This federal lawsuit has
now made Minnesota ground-zero for the debate about SOCC. To redirect all three branches of State
government, and coordinate all the moving parts of SOCC in Minnesota, it now
seems likely that meaningful reforms will require the courage of a Federal
Judge and no less than the power of the Federal Courts.

Jon Brandt, MSW, LICSW

David S. Prescott, LICSW

Blog Note: Part 2 of this three-part series will
discuss the 2014 report prepared by four sex offender treatment experts appointed by the Federal
Court to review MSOP to try to determine why Minnesota has the highest per
capita rate of SOCC in the US.

Kieran McCartan, PhD

Chief Blogger

David Prescott, LICSW

Associate blogger

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The Association for the Treatment of Sexual Abusers (http://atsa.com/) is an international, multi-disciplinary organization dedicated to preventing sexual abuse. Through research, education, and shared learning ATSA promotes evidence based practice, public policy and community strategies that lead to the effective assessment, treatment and management of individuals who have sexually abused or are risk to abuse.

The views expressed on this blog are of the bloggers and are not necessarily those of the Association for the Treatment of Sexual Abusers, Sexual Abuse: A Journal of Research & Treatment, or Sage Journals.

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